Citation Nr: 0410169
Decision Date: 04/20/04 Archive Date: 04/29/04
DOCKET NO. 02-14 043 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased initial evaluation for
gastroesophageal reflux disease (GERD), currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from January 1946 to February 1947.
This matter comes before the Board of Veterans' Appeals (Board) on
appeal from an April 2002 rating decision of the VARO in Waco,
Texas, which granted service connection for GERD and assigned a 10
percent disability evaluation, effective February 15, 2001. The
veteran and his representative argue that the 10 percent rating is
"inadequate for the seriousness of the disability."
This case has been advanced on the Board's docket in accordance
with 38 C.F.R. § 20.900(c).
This appeal is remanded to the RO by way of the Appeals Management
Center (AMC) in Washington, D.C. VA will notify the veteran
should further action be required on his part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA) and its
implementing regulations require that VA provide specific notice
to claimants regarding information needed to complete an
application for benefits as well as specific notice regarding
information or evidence required to substantiate a claim. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the
duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 to
provide adequate notice). VA also has a duty to assist claimants
in the development of their claims. The United States Court of
Appeals for Veterans Claims (Court) has strictly interpreted the
requirements to provide the required notice and the duty to assist
in the development of a claim.
It is expected that the notice will be as helpful and informative
as possible. However, in this case, in his informal hearing
presentation, the veteran's accredited representative noted that
the diagnostic code utilized by the RO in rating the veteran's
symptomatology pertained to infectious hepatitis. The
representative argued that clarification was required, since
infectious hepatitis "bears little resemblance to the appellant's
condition." While the April 2002 rating decision that resulted in
a grant of service connection for GERD cited the criteria for 10
percent and 30 percent disability ratings under Code 7346, the
rating sheet cited Code 7345 for infectious hepatitis as the
applicable code.
Further confusion is present in the August 2002 statement of the
case that provides the criteria for disability ratings for
hypertrophic gastritis under Code 7307. No other diagnostic code
is referred to in the statement of the case.
The Board finds that the medical evidence of record is also
somewhat confusing as to the exact status of the veteran's
disability picture and therefore clarification in this area is
also required. At the time of the rating examination by VA in
February 2002, the veteran denied dysphasia and notation was made
that his GERD had "improved significantly" since he had been
taking a new medication for the past six months. The pertinent
assessment was GERD of more than 20 years' duration, described as
improved on current medical regimen. However, subsequent thereto,
at a hearing before a decision review officer at the VARO in Waco,
Texas, the veteran testified that he was having "lots" of problems
with indigestion. He also described difficulty swallowing.
Further, he referred to having quite a bit of chest pain at times.
He added at the time of the hearing he did not think his
medications were helping him.
Subsequent reports of VA outpatient visits in the claims file are
not instructive as to the degree of impairment of symptomatology
attributable to the GERD.
In view of the foregoing, the Board believes that further
development is in order and the case is REMANDED for the
following:
1. The RO should contact the veteran to obtain the names and
addresses of any medical care providers who have treated him for
his GERD since June 2003. After securing the necessary release,
the RO should obtain any records that have not been previously
secured, especially any VA treatment records.
2. The veteran should be provided an examination of the digestive
system by an appropriate specialist in order to determine the
current nature and extent of impairment attributable to his GERD.
The claims file must be made available to, and pertinent documents
therein reviewed by, the examiner in conjunction with the
examination. The examination should include any diagnostic tests
or studies that are deemed necessary for an accurate assessment.
The examination report should make specific reference to the
veteran's baseline weight as discussed in 38 C.F.R. § 4.112. The
examiner should also address the status of the veteran's overall
health as a result of any reported gastrointestinal
symptomatology.
3. The RO must then review the claims file and ensure that all
notification and development actions required by the VCAA are
completed, to include advising the veteran that he should provide
any evidence in his possession that pertains to the claim. In
particular, the RO should ensure that the most appropriate code
for evaluating the disability is selected and the criteria are
provided to the veteran.
4. The claim should then be readjudicated. If the benefit sought
is not granted to the veteran's satisfaction, he and his
representative should be provided a supplemental statement of the
case. The supplemental statement of the case must contain notice
of all relevant actions taken on the claim for benefits, to
include a summary of the evidence and applicable law and
regulations considered pertinent to the issue currently on appeal.
An appropriate period of time should be allowed for response.
Then, the case should be returned to the Board, if otherwise in
order. The purpose of this REMAND is to comply with governing
adjudicative procedures. The Board intimates no opinion as to any
final outcome warranted. The veteran need take no action unless
otherwise notified; however, he is advised that the examination
requested in this REMAND is deemed necessary to evaluate his claim
and his failure, without good cause, to report for any scheduled
examination could result in a denial of his claim. 38 C.F.R. §
3.655 (2003).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board
of Veterans' Appeals is appealable to the United States Court of
Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).